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The Primacy of Liberty and Proportionality, Not Human Dignity, When Subjecting Criminal Law to Constitutional Control

Published online by Cambridge University Press:  30 January 2013

Kent Roach
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Abstract

This comment argues that courts should focus on the negative liberty interests of the accused and the proportionality of state-imposed limits on those interests, as opposed to the human dignity of either the accused or the victim, when determining the constitutionality of criminal laws. The first part of the comment examines the Canadian experience with regard to the constitutional control of the criminal law. Canadian courts have focused on the liberty of the accused but have been unwilling to consider how the liberty interests of the accused can be subject to proportionate limitations. The next part suggests that human dignity has a dual character that can both support and oppose many controversial parts of the criminal law and as such is not particularly helpful for courts in assessing the constitutionality of criminal laws. The third part critically examines the presumptions of constitutionality proposed by Gur-Arye and Weigend and suggests that human dignity has little work to do in these presumptions. The last part suggests that a focus on the negative liberty of the accused and the proportionality of the state's limits on those rights provides the best foundation for constitutional control of the criminal law.

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Articles
Information
Israel Law Review , Volume 44 , Issue 1-2: Symposium: Human Dignity and the Criminal Law , 2011 , pp. 91 - 113
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2011

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References

1 Gur-Arye, Miriam & Weigend, Thomas, Constitutional Review of Criminal Prohibitions Affecting Human Dignity and Liberty: German and Israeli Perspectives, 44 Isr. L. Rev. 63 (2011)CrossRefGoogle Scholar.

2 Id. at 71.

3 CrimA 4424/98 Silgado v. State of Israel 56(5) PD 529 [2002] (Isr.); R. v. Logan, [1990] 2 S.C.R. 731 (Can.), applying the holding in R. v. Martineau, [1990] 2 S.C.R. 633 (Can.), to invalidate objective liability for accomplices with respect to the crimes of murder and attempted murder. The decisions of the Supreme Court of Canada are available in English and French at http://scc.lexum.umontreal.ca.

4 Following Berlin's famous essay, negative liberty in this comment refers to the absence of constraints from the state, while positive liberty includes the provision by the state of positive goods such as security from crime. Berlin, Isaiah, Two Concepts of Liberty, in Four Essays on Liberty 118 (1969)Google Scholar.

5 See Brudner, Alan, Guilt Under the Charter: The Lure of Parliamentary Supremacy, 40 Crim. L.Q. 287 (1998)Google Scholar.

6 In this comment, I assume that judicial review of the criminal law can be justified. For my arguments that review by an independent judiciary is particularly important given the unpopularity of those accused of crime and the legislature's incentives to favor the rights of victims and potential victims of crime over those suspected or guilty of crime, see Roach, Kent, The Supreme Court on Trial: Judicial Activism or Democratic Dialogue (2001)Google Scholar; Roach, Kent, Judicial Review of the State's Anti-Terrorism Activities: The Post 9/11 Experience and Normative Justifications for Judicial Review, 3 Indian J. Const. L. 138 (2009)Google Scholar.

7 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982, c. 11 (U.K.).

8 Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486 (Can.).

9 R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299 (Can.). The earlier common law presumption was found in Beaver v. R., [1957] S.C.R. 531 (Can.). Justice Dickson also applied the presumption of subjective fault in relation to all elements of a crime to hold that the accused could have a defense of honest but not necessarily reasonable belief in consent in relation to sexual crimes. See Pappajohn v. The Queen, [1980] 2 S.C.R. 120 (Can.). For arguments that the Supreme Court of Canada has failed to constitutionalize these common law presumptions of fault under § 7 of the Charter and that this failure is related to both the Court's reluctance to hold that § 7 rights can be justified under § 1 of the Charter and to the Court's apparent misgivings about the soundness of such subjective fault principles, see Roach, Kent, Mind the Gap: Canada's Different Criminal and Constitutional Standards of Fault, 61 U. Toronto L.J. 545 (2011)CrossRefGoogle Scholar.

10 In her concurring judgment, Justice Wilson invalidated the law on the basis that it imposed punishment that was disproportionate to the crime. The Supreme Court has recognized gross disproportionality of punishment as a basis for invalidating sentences as cruel and unusual. The Court has, however, become increasingly deferential to increasing legislative use of mandatory sentences. See Roach, Kent, Searching for Smith: The Constitutionality of Mandatory Sentences, 39 Osgoode Hall L.J. 367 (2001)Google Scholar.

11 R. v. Pontes, [1995] 3 S.C.R. 44 (Can.); R. v. William Cameron Trucking (2003), 180 C.C.C. (3d) 254 (Can. Ont. C.A.).

12 Common law standards are cumulative to constitutional standards but, unlike constitutional standards, can be abrogated by clearly worded ordinary legislation. Thus the Court's failure to constitutionalize common law standards leaves the common law standards vulnerable to legislative repeal.

13 Principles of proportionality have even been compared to “a supposedly universal, Esperanto-like discourse of constitutional adjudication and reasoning.” Hirshl, Ran, The Rise of Comparative Constitutional Law: Thoughts on Substance and Method, 3 Indian J. Const. L. 11, 12 (2007)Google Scholar.

14 R v. Vaillancourt, [1987] 2 S.C.R. 636 (Can.).

15 R. v. Martineau, [1990] 2 S.C.R. 633 (Can.).

16 Since her retirement, Justice L'Heureux-Dubé has urged prosecutors to use equality rights to support the state's crime control activities. L'Heureux-Dubé, Claire, The Charter of Rights and the Administration of Criminal Justice in Canada—Where Have We Been and Where Shall We Go?, 3 Ohio St. J. Crtm. L. 473 (2006)Google Scholar. For arguments that equality rights of groups of crime victims and potential victims of crime have emerged as a new legitimating force for the criminal sanction, see Roach, Kent, Due Process and Victims' Rights: The New Law and Politics of Criminal Justice ch. 4 (1999)CrossRefGoogle Scholar.

17 R. v. Hess; R. v. Nguyen, [1990] 2 S.C.R. 906 (Can.).

18 Re B.C. Motor Vehicles, [1985] 2 S.C.R. 486 (Can.); R. v. Ruzic, [2001] 1 S.C.R. 687 (Can.); R. v. D.B., [2008] 2 S.C.R. 3 (Can.). See generally Hogg, Peter, Constitutional Law of Canada § 35.14 (4th ed. 2000)Google Scholar; Sharpe, Robert J. & Roach, Kent, The Charter of Rights and Freedoms 84, 221–22 (4th ed. 2009)Google Scholar.

19 R. v. Finta, [1994] 1 S.C.R. 701 (Can.).

20 Mugesera v. Canada (Minister of Citizenship and Immigration) [2005] 2 S.C.R. 100, paras. 173-176 (Can.).

21 R. v. Khawaja (2010), 103 O.R. (3d) 321 (Can. Ont. C.A.).

22 Stuart, Don, Charter Justice in Canadian Criminal Law 80 (4th ed. 2005)Google Scholar.

23 For arguments that Canadian courts have revived an unlawful object murder provision in a manner that risks making the accused guilty of murder for accidental deaths committed while in pursuit of unlawful objects and in a manner that blurs distinctions between responsibility for murder and negligent killings that should be treated as manslaughter, see Roach, Kent, The Problematic Revival of Murder Under Section 229(c) of the Criminal Code, 47 Alberta L. Rev. 675 (2010)CrossRefGoogle Scholar. But for a recent decision upholding unlawful object murders under the Charter, see R. v. Shand (2011), 104 O.R. (3d) 491 (Can. Ont. C.A.).

24 A similar phenomenon has been observed in the United States, which imposes even less constitutional restraints on substantive criminal law than Canada. See Stuntz, William J., The Pathological Politics of Criminal Law, 100 Mich. L. Rev. 505 (2001)CrossRefGoogle Scholar (noting the incentives of legislatures to create broad crimes and arguing that greater constitutionalization of the criminal law is necessary); Dubber, Markus Dirk, Policing Possession: The War on Crime and the End of Criminal Law, 91 J. Crim. L. & Criminology 829 (2001)CrossRefGoogle Scholar (broad criminal offenses provide little if any restraint on the police).

25 R. v. Creighton, [1993] 3 S.C.R. 3 (Can.).

26 R. v. Beatty, [2008] 1 S.C.R. 49 (Can.).

27 Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519 (Can.).

28 Re B.C. Motor Vehicles, [1985] 2 S.C.R. 486 (Can.); R. v. Ruzic, [2001] 1 S.C.R. 687 (Can.); R. v. D.B., [2008] 2 S.C.R. 3 (Can.).

29 Silgado, supra note 3.

30 Compare 39 BVerfGE 1 (1975) with Roe v. Wade, 410 U.S. 113 (1973) and R. v. Morgentaler, [1988] 1 S.C.R. 30 (Can.).

31 R. v. Malmo-Levine; R. v. Caine, [2003] 3 S.C.R. 571, para. 113 (Can.); R. v. D.B., [2008] 2 S.C.R. 3, paras. 46, 125 (Can.).

32 Rodriguez v. British Columbia, [1993] 3 S.C.R. 519 (Can.).

33 Id. at 559.

34 The offense of incest has been upheld under the Canadian Charter in R. v. F. (R.P.) (1996), 105 C.C.C. (3d) 435 (N.S.C.A.); R v. S. (M.) (1996), 111 C.C.C. (3d) 467 (B.C.C.A.) leave to appeal refused, [1997] 1 S.C.R. ix (Can.). In Germany, see 120 BVerfGE 224 (2008) as discussed in Gur Arye & Weigend, supra note 1, at 70 n. 32.

35 See Fletcher, George P., With Justice for Some: Victims' Rights in Criminal Trials (1995)Google Scholar; Roach, supra note 16; Dubber, Markus Dirk, Victims in the War on Crime: The Use and Abuse of Victims' Rights (2002)Google Scholar.

36 For example, groups representing the disabled intervened both in support of and in opposition to the assisted suicide law in Rodriguez. See Roach, supra note 16, at 132-33.

37 Hobbes, Thomas, Leviathan (1651)Google Scholar.

38 Hohfeld, Wesley Newcomb, Fundamental Legal Conceptions as Applied in Judicial Reasoning and Other Legal Essays (1919)Google Scholar.

39 Berlin, supra note 4.

40 Gur Arye & Weigend, supra note 1, at 79-80.

41 Id. at 79

42 Id. at 80.

43 In cases where Canadian courts have accepted that competing rights of the accused and the victim are at stake, the Supreme Court has attempted to reconcile the competing rights by placing definitional limits on the rights without regard to the government's ordinary burden of having to justify limits on rights under § 1 of the Charter. See, e.g., R. v. Mills, [1999] 3 S.C.R. 668 (Can.).

44 Gur Arye & Weigend, supra note 1, at 80.

45 R. v. S.A.B., [2003] 2 S.C.R. 678 (Can.) (DNA warrants upheld as constitutional); Schmerber v. California, 384 U.S. 757 (1966) (blood samples upheld as constitutional).

46 Gur Arye & Weigend, supra note 1, at 88.

47 Id. at 89.

48 Roach, supra note 9.

49 Gur Arye & Weigend, supra note 1, at 89.

50 Id.

51 Barak, Aharon, Foreword: A Judge on Judging: The Role of a Supreme Court in a Democracy, 116 Harv. L. Rev. 16 (2002)Google Scholar; Roach, supra note 6.

52 R. v. Morgentaler, [1988] 1 S.C.R. 30, para. 164. For arguments that classical liberalism motivated Justice Wilson's decisions about substantive criminal law, criminal procedure, and proportionality analysis under the limitation clauses, see Roach, Kent, Justice Bertha Wilson: A Classically Liberal Judge, in Reflections on the Legacy of Justice Bertha Wilson (Cameron, Jamie ed., 2008)Google Scholar.

53 Para. 9 of judgment as translated in Gur-Arye & Weigend, supra note 1, at 77.

54 Silgado, supra note 3.

55 Gur Arye & Weigend, supra note 1, at 78.

56 Roach, supra note 9 (defending subjective mens rea as most consistent with individual culpability, fair labeling, and restraint in the use of the criminal law).

57 See, e.g., Fletcher, George P., The Meaning of Innocence, 48 U. Toronto L.J. 157 (1998)CrossRefGoogle Scholar; Stribopoulos, James, The Constitutionalization of “Fault” in Canada: A Normative Critique, 42 Crim. L.Q. 227 (1999)Google Scholar; Fletcher, George P., Rethinking Criminal Law § 6.8 (2000)Google Scholar; Tadros, Victor, Criminal Responsibility (2005)Google Scholar.

58 Way, Rosemary Caims, The Charter, the Supreme Court and the Invisible Politics of Fault, 12 Windsor Y.B. Access Just. 128 (1992)Google Scholar.

59 In 1992, the Canadian Parliament provided that the accused would be denied the mistake of fact defense in sexual assault if “the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.” Criminal Code, R.S.C. 1985, c. C-46, § 273.2(b) (Can.). In 2004, the same Parliament expanded corporate liability for subjective fault offenses by providing that the corporation could be liable if a senior officer “knowing that a representative of the organization is or is about to be a party to the offence, does not take all reasonable measures to stop them from being a party to the offence.” Id. § 22.2(c).

60 R. v. Beatty, [2008] 1 S.C.R. 49 (Can.).

61 Gur Arye & Weigend, supra note 1, at 80.

62 Beck, Ulrich, Risk Society: Towards A New Modernity (1992)Google Scholar.

63 For an argument that proportionality analysis should be very deferential to the state's choice of objectives, see Beatty, David, The Ultimate Rule of Law (2004)CrossRefGoogle Scholar.